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EXECUTION COPY
SEA CONTAINERS LTD.,
as Pledgor
CITICORP TRUSTEE COMPANY LIMITED,
as Trustee
and
CITIBANK INTERNATIONAL PLC,
as Agent
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OEH Security Agreement
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THIS OEH SECURITY AGREEMENT is dated as of December 22, 2003
BETWEEN
(1) SEA CONTAINERS LTD, a Bermuda exempted company of registered address 00
Xxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx, as pledgor (the "Pledgor");
(2) CITICORP TRUSTEE COMPANY LIMITED, of Citigroup Centre, Canada Square,
Xxxxxx Xxxxx, Xxxxxx X00 0XX, as trustee for and on behalf of the Secured
Parties (the "Trustee"); and
(3) CITIBANK INTERNATIONAL PLC, as agent of the Finance Parties of Citigroup
Centre, 33 Canada Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX (the "Agent").
WHEREAS
The Pledgor is entering into this Agreement for the purpose of pledging its
interest in the Collateral to the Trustee, for and on behalf of the Secured
Parties, as security for the Secured Obligations.
NOW, in consideration of the Secured Parties incurring the Secured Obligations,
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"Account" has the meaning ascribed to such term in the Account Control
Agreement;
"Account Control Agreement" means the account control agreement, dated as
of December 22, 2003, among the Trustee, the Pledgor and the Custodian;
"Amendment Agreement" means the amendment to the Facility Agreement dated
on or about the date of this Agreement.
"Business Day" means any day, other than Saturday or Sunday, when
financial institutions are not required to be closed for business in
London, England and New York, New York;
"Collateral" means the Class A Shares and Class B Shares of
Orient-Express Hotels Limited (E.C. number 13215) held by, to the order
or on behalf of the Pledgor and any other assets from time to time
credited to the Account by the Pledgor;
"Collateral Rights" means all rights, powers and remedies of the Trustee
provided by this Agreement, any other Finance Document or by applicable
law;
"Custodian" means Citigroup Global Markets Inc.;
"Dematerialisation Process" has the meaning ascribed to such term in the
Amendment Agreement.
"Facility Agreement" means the US$158,000,000 facility agreement, dated
June 10, 2003 (as amended from time to time thereafter), entered into
between, among others, Sea Containers British Isles Limited, as borrower,
and the Trustee;
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental authority or other entity;
1.2 Capitalized terms used but not defined herein shall have the respective
meanings ascribed thereto in the Facility Agreement.
1.3 In this Agreement, any reference to (a) a "Clause" is, unless otherwise
stated, a reference to a Clause hereof and (b) "this Agreement" is a
reference to this OEH Security Agreement as amended, varied or
supplemented from time to time. Clause headings are for ease of reference
only.
2. GRANT OF SECURITY INTEREST
In order to secure the full and punctual payment of, and the performance
by the Pledgor of, the Secured Obligations owing to the Secured Parties,
the Pledgor hereby grants, assigns, pledges and hypothecates unto the
Trustee, on behalf of the Secured Parties, a first priority security
interest in the Collateral and all proceeds thereof.
3. RELATION TO OTHER SECURITY DOCUMENTS
The provisions of this Agreement supplement the provisions of any real
estate mortgage or deed of trust granted by the Pledgor to the Trustee,
on behalf of the Secured Parties, and securing the payment or performance
of any of the Secured Obligations. Nothing contained in any such real
estate mortgage or deed of trust shall derogate from any of the rights or
remedies of the Trustee hereunder.
4. DELIVERY OF COLLATERAL
The Pledgor shall transfer the Collateral to the Custodian and take any
steps necessary to effect such transfer. If any securities forming part
of the Collateral are registered in the name of, payable to the order of,
or specially indorsed to, the Pledgor, then the Pledgor will indorse such
securities to the Trustee or will deliver a blank indorsement to the
Trustee.
5. INTERESTS IN RESPECT OF COLLATERAL
5.1 Unless an Event of Default has occurred and is continuing, the Trustee
will instruct the Custodian to deposit any income generated by or
dividends paid on any securities pledged as Collateral to the Pledgor.
5.2 So long as (a) no Event of Default shall have occurred and be continuing
and (b) the aggregate of the Market Value of the Collateral exceeds the
Required Security Coverage Amount, the Pledgor may sell any Collateral in
accordance with this Clause 5.2; provided that no such sale will cause
the Market Value of the Collateral to fall below the Required Security
Coverage Amount. To initiate any such sale, the Pledgor will provide
notice (in substantially the form attached hereto as Exhibit A) to the
Agent and the Custodian (with a copy to the Trustee) of its intent to
sell a specified amount of securities to a designated purchaser. Upon
receiving such notice counter-signed by the Agent, the Custodian, for and
on behalf of the Trustee, will deliver such securities to such designated
purchaser in exchange for payment of the purchase price therefor and such
purchase price will be for the account of the Pledgor.
5.3 To initiate a sale of Collateral pursuant to Clause 20.2 (a)(ii) of the
Facility Agreement, the Pledgor will provide notice (in substantially the
form attached hereto as Exhibit B) to the Agent and the Custodian (with a
copy to the Trustee) of its intent to sell a specified amount of
securities to a designated purchaser. Upon receiving such notice, the
Custodian, for and on behalf of the Trustee, will deliver such securities
to such designated purchaser in exchange for payment of the purchase
price therefor and such purchase price will be for the account of the
Pledgor. The Custodian will deposit an amount equal to the purchase price
of such securities into the Mandatory Prepayment Account in accordance
with Clause 7.8 (Mandatory Prepayment and Cancellation - Secured Shares)
of the Facility Agreement.
5.4 The Pledgor shall pay all calls, installments or other payments, and
shall discharge all other obligations, which may become due in respect of
the Collateral, and upon the occurrence of an Event of Default, the
Trustee may (but shall not be required to) make such payments or
discharge such obligations on behalf of the Pledgor. Any sums so paid by
the Trustee in respect thereof shall be repayable on demand (with
interest payable thereon from the date of demand until paid at a rate
chosen by the Trustee) and pending such repayment of such sums shall
constitute part of the Secured Obligations.
5.5 The Trustee shall have no duty to ensure (i) that any dividends, interest
or other amounts and assets receivable in respect of the Collateral are
duly and punctually paid, received or collected as and when the same
become due and payable, (ii) that the correct amounts (if any) are paid
or received on or in respect of the Collateral or (iii) the taking up of
any (or any offer of any) stocks, shares, rights, monies or other
property paid, distributed, accruing or offered at any time by way of
redemption, bonus, rights, preference or otherwise on or in respect of,
the Collateral.
5.6 Unless an Event of Default has occurred and is continuing, the Pledgor
shall be entitled to exercise all voting rights in relation to any
securities pledged as Collateral, provided that the Pledgor shall not
exercise such voting rights in any manner which would, in the opinion of
the Trustee, prejudice the value of, or the ability of the Trustee to
realize, the security created by this Agreement.
5.7 The Pledgor shall not, without the prior written consent of the Trustee,
by any means, permit or agree to any variation of the rights attaching to
or conferred by all or any part of any securities pledged as Collateral.
5.8 Unless an Event of Default has occurred and is continuing, the Trustee
shall not assign, rehypothecate or otherwise transfer its security
interest in the Collateral, subject to Section 5.9.
5.9 At any time following the occurrence of a Sales Date, the Agent (acting
on the instructions of the Majority Lenders) may sell the Collateral in
accordance with Schedule 1 in exchange for payment therefor and will
deposit the proceeds of any such sale into the Mandatory Prepayment
Account.
5.10 The Trustee may, at any time after the occurrence of an Event of Default
(as long as it is continuing), at its discretion, in the name of the
Pledgor or otherwise and without any further consent or authority from
the Pledgor:
5.10.1 apply all interest and other monies arising from the Collateral,
5.10.2 transfer the Collateral, and
5.10.3 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner of
the Collateral,
in each case in such manner and on such terms as the Trustee may think
fit, and the proceeds of any such action shall form part of the
Collateral.
6. PLEDGOR'S REPRESENTATIONS AND COVENANTS
6.1 Except with the Trustee's prior written consent, the Pledgor shall not:
6.1.1 transfer, assign or dispose of any part of the Collateral other
than as expressly contemplated in, and permitted by, this
Agreement; or
6.1.2 create, grant or permit to exist any security interest over, or
any restriction on the ability to transfer or realize, all or any
part of the Collateral (other than as set out in the Account
Control Agreement or any other Security Documents).
6.2 The Pledgor further covenants with the Trustee:
6.2.1 on demand, to pay all amounts, interests, expenses, claims,
liabilities, losses, costs, duties, fees, charges or other monies
as are stated in the Facility Agreement and this Agreement to be
payable by the Pledgor or to be recoverable form the Pledgor by
the Trustee (or in respect of which the Pledgor agrees in the
Facility Agreement) at the times and in the manner specified in
the Facility Agreement; and
6.2.2 on demand, to pay interest on any such amounts, interests,
expenses, claims, liabilities, losses, costs, duties, fees,
charges or other monies referred to in this Clause 6.2.2 from the
date on which the relevant amount, interest, expense, liability,
loss, cost, duty, fee, charge or other money is due under the
terms of the Facility Agreement or this Agreement until the date
of payment thereof to the Trustee entitled thereto (both before
and after any relevant judgment) at the rate prescribed by the
Facility Agreement.
6.3 The Pledgor hereby represents and warrants to the Trustee and undertakes
during the subsistence of this Agreement that:
6.3.1 it is duly incorporated and validly existing under the laws of its
jurisdiction of incorporation;
6.3.2 it is and (until discharge of the security created by this
Agreement by payment in full of all of the Secured Obligations)
will be the sole legal and beneficial owner of the Collateral,
free from any security interest (other than those created by this
Agreement), and the Collateral is free from any options or rights
of preemption.
6.3.3 it has not sold or disposed of, and will not sell or dispose of
without the written consent of the Trustee, the benefit of all or
any of its rights, title and interest in the Collateral, except as
otherwise expressly permitted hereunder and under the other
Security Documents or any Finance Document;
6.3.4 neither it, nor any of its assets, enjoys a right of immunity from
set off, suit or execution in respect of its obligations under
this Agreement, the Account Control Agreement or any other
Security Documents;
6.3.5 it does not hold any interest in the Collateral as trustee of any
trust;
6.3.6 it has full power and authority (i) to be the legal and beneficial
owner of the Collateral legally and beneficially owned by it; (ii)
to execute and deliver this Agreement and (iii) to comply with the
provisions of, and perform all of its obligations under, this
Agreement;
6.3.7 this Agreement constitutes a legal, valid and binding obligation
of the Pledgor, enforceable against the Pledgor in accordance with
its terms except as such enforcement may be limited by any
relevant bankruptcy, insolvency, administration or similar laws
affecting creditors' rights generally;
6.3.8 the entry into and performance by the Pledgor of this Agreement
does not violate (i) any law or regulation of any governmental or
official authority, or (ii) any agreement, contract or other
undertaking to which the Pledgor is a party or which is binding
upon the Pledgor or any of its assets;
6.3.9 all consents, licenses, approvals and authorizations required in
connection with the entry into, performance, validity and
enforceability of this Agreement have been obtained and are, and
will remain, in full force and effect;
6.3.10 the granting of the security constituted by this Agreement will be
in the commercial interests of the Pledgor;
6.3.11 it is able (and upon execution of this Agreement will continue to
be able) to meet its liabilities as they fall due for payment and
(based upon its most recent quarterly management accounts) the
value of its assets exceed the value of its liabilities, taking
into account any contingent or prospective liabilities; and
6.3.12 all securities pledged as Collateral are fully paid, and the
Pledgor undertakes to pay all calls or other payments due in
respect of such securities. If the Pledgor fails to make any such
payment, the Trustee may make such payment on behalf of the
Pledgor and any sums so paid by the Trustee shall be reimbursed by
the Pledgor on demand, together with interest on those sums. Such
interest shall be calculated from the due date up to the actual
date of payment (after, as well as before, judgment) at such
commercial rate as the Trustee may reasonably determine.
7. INDEMNITIES
7.1 The Pledgor will indemnify and save harmless the Trustee, and each agent
or attorney appointed under or pursuant to this Agreement, from and
against any and all expenses, claims, liabilities, losses, taxes, costs,
duties, fees and charges suffered, incurred or made by the Trustee or
such agent or attorney;
7.1.1 in the exercise or purposed exercise of any rights, powers or
discretion vested in them pursuant to this Agreement;
7.1.2 in the preservation or enforcement of the Trustee's rights under
this Agreement or the priority thereof; or
7.1.3 in the release of all or any part of the Collateral from the
security created by this Agreement; or
7.1.4 as a result of the failure on the part of the Pledgor to perform
its obligations hereunder;
and the Trustee, or such agent or attorney, may retain and pay any such
sums out of money received under the powers conferred by this Agreement.
All amounts recoverable by the Trustee or such agent or attorney or any
of them shall be recoverable on a full indemnity basis.
8. POWER OF ATTORNEY
The Pledgor, by way of security, irrevocably appoints the Trustee to be
its attorney-in-fact to execute, deliver and perfect all documents
(including any instruments of transfer) and do all things that the
Trustee may consider to be requisite for (a) carrying out any obligation
imposed on the Pledgor under this Agreement or (b) exercising any of the
rights conferred on the Trustee by this Agreement or by law, (including,
after the security constituted hereby has become enforceable, the
exercise of any right of a legal or a beneficial owner of the
Collateral). The Pledgor shall ratify and confirm all things done and all
documents executed by the Trustee in the exercise of that power of
attorney.
9. EXPENSES
9.1 The Pledgor agrees that it shall pay to the Trustee, on demand, all
costs, fees and expenses (including, but not limited to, legal fees and
expenses) and taxes thereon incurred by the Trustee, or for which the
Trustee may become liable in connection with:
9.1.1 the negotiation, preparation and execution of this Agreement;
9.1.2 the preserving or enforcing of, or attempting to preserve or
enforce, any of the rights under this Agreement or the priority
hereof;
9.1.3 any variation of, or amendment or supplement to, any of the terms
of this Agreement; and/or
9.1.4 any consent or waiver required from the Trustee in relation to
this Agreement, and, in any case referred to in Clauses 10.1.3 and
10.1.4, regardless of whether the same is actually implemented,
completed or granted, as the case may be.
10. RIGHTS UPON DEFAULT
10.1 If an Event of Default has occurred and is continuing, the Trustee shall
be entitled (a) to exercise all rights and remedies available to a
secured party under applicable law with respect to the Collateral held by
the Trustee and (b) without prior notice to the Pledgor or prior
authorization from any court (except to the extent required by law), to
register any other securities pledged as Collateral in the name of the
Trustee, its custodian or a nominee for either, or to sell or otherwise
dispose of all or any part of the Collateral (at the times, in the manner
and on the terms it thinks fit). The Trustee shall be entitled to apply
the proceeds of that sale or other disposal in paying the costs of that
sale or disposal and in or towards the discharge of the Secured
Obligations in accordance with Clause 12.
10.2 A certificate in writing by an officer or agent of the Trustee that any
power of sale or other disposal has arisen and is exercisable shall be
conclusive evidence of that fact in favor of a purchaser of all or any
part of the Collateral.
11. Application of proceeds
11.1 If an Event of Default has occurred and is continuing, all amounts
received by the Trustee pursuant to this Agreement shall be applied or
paid:
11.1.1 First, to satisfy all such expenses, liabilities, losses, costs,
duties, fees, charges or other amounts whatsoever as may have been
paid or incurred by the Trustee in exercising any of the powers
specified or otherwise referred to in this Agreement;
11.1.2 Second, in or towards satisfaction of any amounts in respect of
the balance of the Secured Obligations as are then accrued, due
and payable or are then due and payable by virtue of payment
demanded, in such order or application as the Trustee shall think
fit;
11.1.3 Third, in retention of an amount equal to any part or parts of the
Secured Obligations as are or are not then due and payable but
which (in the sole and absolute opinion of the Trustee) will or
may become due and payable in the future and, upon the same
becoming due and payable, in or towards satisfaction thereof in
accordance with the foregoing provisions of this Clause 12; and
11.1.4 Fourth, to the Pledgor.
11.2 Neither the Trustee nor its agents, managers, officers, employees,
delegates and advisers shall be liable for any claim, demand, liability,
loss, damage, cost of expense incurred or arising in connection with the
exercise or purported exercise of any right, power or discretion
hereunder in the absence of gross negligence, fraud or willful
misconduct.
12. Security Interest Absolute
All rights of the Trustee hereunder, the grant of the security interests
in the Collateral, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of any Finance Document, any agreement with respect to any
of the Secured Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Secured
Obligations, or any other amendment or waiver of or any consent to any
departure from any Finance Document or any other agreement or instrument
relating to any of the foregoing, (c) any exchange, release or
non-perfection of any other collateral, or any release or amendment or
waiver of or consent to or departure from any guaranty, for all or any of
the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the
Pledgor in respect of the Secured Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Secured
Obligations).
13. Severability
In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties
shall endeavor in good faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions, the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
14. NOTICES
Any notice required to be given hereunder shall be in writing and shall
be served by sending the same by prepaid recorded post, facsimile or by
delivering the same by hand to the address of the party of parties in
question as set forth below (or such other address as such party or
parties shall notify the other parties of in accordance with this Clause
15). Any notice sent by post as provided in this Clause 15 shall be
deemed to have been served five Business Days after dispatch and any
notices sent by facsimile as provided in this Clause 15 shall be deemed
to have been served at the time of dispatch, and in proving the service
of the same it will be sufficient to provide in the case of a letter that
such letter was properly stamped, addressed and placed in the post; and
in the case of facsimile, it will be sufficient to prove that such
facsimile was duly dispatched to a current facsimile number of the
addressee. The addresses for notice of each party is as follows:
in the case of the Pledgor, to:
Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx, Xxxxxx XX0 0XX
Attention: Company Secretary
Fax number: x00 000 000 0000
in the case of the Trustee, to:
Citicorp Trustee Company Limited
Citigroup Centre,
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention: Agency and Trust
Fax number: x00 0000 000 0000
in the case of the Custodian, to:
Citigroup Global Markets Inc.
Special Equity Transactions Group
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Candida
Fax number: x0 000 000 0000
in the case of the Agent, to:
Citibank International PLC
Citigroup Centre,
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention: Loans Agency
Fax number: x00 000 000 0000
15. Assignments; Successors
15.1 This Agreement shall be binding upon and shall inure to the benefit of
the Pledgor and the Trustee and each of their respective successors and
(subject as hereinafter provided) assigns, and references in this
Agreement to any of them shall be construed accordingly.
15.2 The Pledgor may not assign or transfer all or any part of its rights
and/or obligations under this Agreement without the prior written consent
of the Trustee, and any such purported assignment or transfer, without
such consent, shall be void.
15.3 The Trustee may assign or transfer all or any part of its rights or
obligations under this Agreement to any assignee or transferee or
successor without the consent of the Pledgor. The Trustee shall notify
the Pledgor promptly following any such assignment or transfer or
appointment of a successor
15.4 This Agreement shall remain in effect despite any amalgamation or merger
(however effected) relating to the Trustee. References to the Trustee
shall be deemed to include any assignee or successor in title of the
Trustee and any person who, under the laws of its jurisdiction of
incorporation or domicile, has assumed the rights and obligations of the
Trustee hereunder or to which under such laws the same have been
transferred.
16. GOVERNING LAW; SUBMISSION TO JURISDICTION
16.1 This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
16.2 ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF
OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, AND ANY
APPELLATE COURT FROM ANY SUCH COURT, AND BY ITS EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT.
16.3 The parties hereby agree that service of process sufficient for personal
jurisdiction in any action against such party in the State of New York
may be made by registered or certified mail, return receipt requested, to
the applicable party at its address referred to in the Schedule, and such
party hereby acknowledges that such service shall be effective and
binding in every respect. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of
any party hereto to bring proceedings against any other party hereto in
the courts of any other jurisdiction.
17. HEADINGS AND REFERENCES
The headings and captions in this Agreement are for reference only and
shall not affect the construction or interpretation of any of its
provisions.
18. NO WAIVER.
No failure on the part of Pledgor or the Trustee to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise by the
Pledgor or the Trustee of any right, power or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power or remedy. The remedies herein are cumulative and are not exclusive
of any remedies provided by law.
19. AMENDMENTS
The terms of this Agreement may be waived, altered or amended only by an
instrument in writing duly executed by the Pledgor and the Trustee.
20. COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of which
when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF the undersigned has caused this Security Agreement to be duly
executed as of the date first above mentioned.
SEA CONTAINERS LTD.,
as Pledgor
By:
Name:
Title:
CITICORP TRUSTEE COMPANY LIMITED,
as Trustee
By:
Name:
Title:
Accepted and agreed:
CITIGROUP GLOBAL MARKETS INC.,
as Custodian
By:
Name:
Title:
CITIBANK INTERNATIONAL PLC,
as Agent
By:
Name:
Title:
SCHEDULE 1
1.1 Power of Attorney
At any time following the occurrence of a Sales Date, the Agent (acting
on the instructions of the Majority Lenders) shall have the right to sell
the Collateral (the "Power of Attorney") at such times, in such manner,
and in such volumes as the Agent may direct in its absolute discretion
including, without limitation, by way of: 1.1.1 trade sale to a strategic
or financial buyer;
1.1.2 unregistered block trade or private placement;
1.1.3 public sales under a shelf registration statement of OEH filed
with the SEC, with the Pledgor acting solely upon the instructions
of the Agent or the Agent selling on behalf of the Pledgor under
the Power of Attorney, in each case including an underwritten
offering;
1.1.4 unsolicited broker's transactions or sales directly with
market-makers, in each case pursuant to Rule 144 under the
Securities Act, and
the Pledgor shall take, and shall use its reasonable best efforts,
including through using its voting rights and board representation, to
procure that OEH will take, any action necessary, and shall provide, and
shall use its reasonable best efforts, including through using its voting
rights and board representation, to procure that OEH will provide, any
manner of assistance as the Agent may require in connection with such
sale, provided that the proceeds of such sale by the Agent pursuant to
this Clause 1.1 should not exceed an amount required to ensure that the
Pledgor is in compliance with Clause 20.1 of the Facility Agreement.
1.2 OEH Share Sale
In connection with the sale (in any manner whatsoever) of the Collateral
after a Sales Date, the Pledgor shall promptly do, and shall use its
reasonable best efforts, including through using its voting rights and
board representation, to procure that OEH will do, all such acts or
execute all such documents as the Agent may reasonably specify (and in
such form as the Agent may reasonably require in favor of the Agent or
its nominees).
1.3 Registration Rights and Indemnity Agreement
(a) Without prejudice to Clause 7.6 (Mandatory Prepayment and
Cancellation - Secured Shares) and Clause 20 (Security Cover and
Financial Covenants) of the Facility Agreement:
(i) Filing and Effectiveness
In connection with the Power of Attorney and the pledge by the
Pledgor of the Collateral hereunder, the Pledgor agrees to use its
reasonable best efforts, including through using its voting rights
and board representation, to procure that OEH will:
(A) promptly (but in any event within three Business
Days) upon request of the Agent, if necessary, file
an amendment to the registration statement on Form
S-3 (File No. 333-102576) filed by OEH pursuant to
Rule 415 under the Securities Act (the "Existing
Shelf Registration Statement") or file an amendment
to the prospectus in the Existing Shelf Registration
Statement pursuant to Rule 424(b) under the
Securities Act, to provide for re-sales of all of
(i) the Class A Shares of OEH (the "A Shares") held
by the Pledgor (including all of the A Shares
issuable upon conversion of all of the Class B
Shares of OEH (the "B Shares" and, together with the
A Shares, the "Shares") held by the Pledgor) and
(ii) such A Shares by the Agent following a Sales
Date, in each case in accordance with the intended
method or methods of distribution thereof as
specified by the Pledgor and/or the Agent, including
an underwritten offering, and in the event the
Existing Shelf Registration Statement becomes for
any reason unavailable to permit public re-sales of
A Shares by the Pledgor or the Agent in the United
States (other than pursuant to the terms of
paragraph (b) of this Clause 1.3), file with the SEC
a new registration statement on Form S-3 (or any
successor form thereto, or any other form available
for use by OEH for the registration of re-sales of A
Shares by the Pledgor and/or the Agent) (a "New
Shelf Registration Statement"; the Existing Shelf
Registration Statement and the New Shelf
Registration Statement are each referred to herein
as a "Shelf Registration Statement"), which Shelf
Registration Statement shall provide for re-sales of
all of (i) the A Shares held by the Pledgor
(including all of the A Shares issuable upon
conversion of all of the B Shares held by the
Pledgor) and (ii) such A Shares by the Agent
following a Sales Date, in each case in accordance
with the intended method or methods of distribution
thereof as specified by the Pledgor and/or the
Agent, including an underwritten offering;
(B) use its reasonable best efforts to cause any
required New Shelf Registration Statement to be
declared effective by the SEC as promptly as is
practicable but in no event later than 75 days after
the filing thereof (the applicable date being, in
the case of either the Existing Shelf Registration
Statement or the New Shelf Registration Statement,
as applicable, the "Registration Statement Effective
Date"); and
(C) at all times, use its reasonable best efforts to
keep the Shelf Registration Statement continuously
effective and, including with respect to any
prospectus contained therein (a "Prospectus"),
supplemented and amended to the extent necessary to
ensure that (i) it is available for re-sales by the
Pledgor and/or the Agent and (ii) it conforms with
the requirements of this Agreement and the
Securities Act and the rules and regulations of the
SEC promulgated thereunder as announced from time to
time, for a period (the "Effective Period") ending:
(1) in the event that the Agent has taken possession of any
Shares as a result of enforcement of the pledge of the
Collateral hereunder, when (i) the Agent is able to sell
all of the Shares without restriction pursuant to the
volume limitation provisions of Rule 144(e) under the
Securities Act or any successor rule thereto or (ii) all of
the Shares so possessed by the Agent have been sold; or
(2) in the event that the Agent has not taken possession of any
Shares as a result of enforcement of the pledge of the
Collateral hereunder, when all amounts owed by the Pledgor
and its affiliates to the Lenders under the Loan have been
paid in full.
(b) Suspension Periods
Notwithstanding any provision of paragraph (a)(i)(C) of this
Clause 1.3 to the contrary, the effectiveness of the Shelf
Registration Statement may be suspended by written notice from the
Pledgor or OEH to the Agent for a period not to exceed an
aggregate of 30 days in any 90-day period (each such period, a
"Suspension Period", and the aggregate of all such Suspension
Periods shall not exceed an aggregate of 60 days in any 360 day
period) if:
(i) an event occurs and is continuing as a result of which the
Shelf Registration Statement would, in the reasonable
judgment of the Board of Directors of OEH, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(ii) OEH reasonably determines that the disclosure of such event
at such time would have a Material Adverse Effect on the
business of OEH and its subsidiaries, taken as a whole;
provided, however, that in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the ability of
OEH to consummate such transaction, a Suspension Period may be
extended from 30 days to 45 days, subject in any event to the
requirement that Suspension Periods shall not exceed an aggregate
of 60 days in any 360-day period.
(c) Registration Procedures
In connection with the Shelf Registration Statement, the Pledgor
agrees to use its reasonable best efforts, including through using
its voting rights and board representation, to procure that OEH
will:
(i) advise the Agent promptly (but in any event within one
Business Day):
(A) when the Prospectus or any Prospectus supplement or
any New Shelf Registration Statement or
post-effective amendment to any Shelf Registration
Statement has been filed, and when any New Shelf
Registration Statement or any post-effective
amendment to any Shelf Registration Statement has
become effective,
(B) of any request by the SEC for amendments to a Shelf
Registration Statement or amendments or supplements
to the Prospectus or for additional information
relating thereto,
(C) of the issuance by the SEC of any stop order
suspending the effectiveness of a Shelf Registration
Statement under the Securities Act, or the
initiation of any proceeding for such purpose known
to OEH, or
(D) of the existence of any fact or the happening of any
event that makes any statement of a material fact
made in a Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in a Shelf Registration Statement or
the Prospectus in order to make such statements
therein not misleading;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to a Shelf Registration Statement
as may be necessary to keep it effective during the
Effective Period; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so
supplemented to be filed (if required) pursuant to Rule
424(b) under the Securities Act, and comply fully with the
applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the sale
or other disposition of all A Shares covered by the Shelf
Registration Statement during the Effective Period in
accordance with the intended method or methods of
distribution by the Pledgor or the Agent set forth in the
Shelf Registration Statement or supplement to the
Prospectus;
(iii) furnish to the Agent such number of conformed copies of
each Shelf Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits and
documents incorporated by reference), such number of copies
of the Prospectus (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424(b) under the Securities Act relating to the
Shares, in conformity with the requirements of the
Securities Act, and such other documents as the Agent may
reasonably request to facilitate the disposition of the
Shares;
(iv) at any time on or after the occurrence of a Sales Date, (A)
promptly notify the Agent, at any time when a prospectus
relating to the A Shares is required to be delivered under
the Securities Act, upon discovery that, or upon the
happening of any event known to OEH, as a result of which,
the Prospectus included in the Shelf Registration Statement
as then in effect includes an untrue statement of a
material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under
which they were made, and (B) at the request of the Agent
as promptly as practicable, prepare and furnish to the
Agent a reasonable number of copies of a supplement to or
an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of A
Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made;
(v) upon the occurrence of any event that would cause a Shelf
Registration Statement or the Prospectus contained therein
not to be effective and usable for the re-sale of A Shares
during the Effective Period, file promptly an appropriate
amendment to the Shelf Registration Statement or a report
filed with the SEC pursuant to Section 13(a), 13(c) or
15(d) of the US Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and use its best efforts to cause
such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable
thereafter;
(vi) if at any time the SEC shall issue any stop order
suspending the effectiveness of a Shelf Registration
Statement, use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(vii) on or after the occurrence of a Sales Date, furnish to the
Agent, at least five Business Days before filing with the
SEC, a copy of any amendment to the Shelf Registration
Statement and copies of any Prospectus supplement
(excluding documents incorporated by reference therein),
which amendment or supplement will be subject to the review
of the Agent (and any underwriters, broker-dealers or other
agents acting on behalf of the Agent), and
(A) not file any amendment to a Shelf Registration
Statement or a Prospectus supplement (excluding
documents incorporated by reference therein) to
which the Agent (or any underwriters, broker-dealers
or other agents acting on behalf of the Agent) shall
reasonably object within three Business Days after
the receipt thereof; and/or
(B) make such changes in such amendments or supplements
prior to the filing thereof, if reasonably
practicable, or prepare and file further amendments
or supplements, as the Agent (or any underwriters,
broker-dealers or other agents acting on behalf
thereof) may reasonably request;
(viii) on and after the occurrence of a Sales Date, make
representatives of OEH and its subsidiaries available for
discussion and make available at reasonable times for
inspection all financial and other records, pertinent
corporate documents and properties of OEH and its
subsidiaries as shall be reasonably necessary to enable the
Agent and any underwriters, broker-dealers or agents acting
on behalf of the Agent, and any attorney or accountant
retained by any of them, to exercise any applicable due
diligence responsibilities and to conduct a reasonable
investigation within the meaning of the Securities Act, and
cause OEH's officers, directors, managers and employees
supply all information reasonably requested by the Agent
and any underwriters, broker-dealers or agents acting on
behalf thereof, and any attorney or accountant retained by
any of them in connection with a Shelf Registration
Statement; provided, however, that any information
designated by OEH as confidential at the time of delivery
of such information shall be kept confidential by the
recipient thereof and shall not be disclosed by the
recipient thereof unless (i) disclosure of such information
is necessary to avoid or correct a misstatement or omission
in a Shelf Registration Statement, (ii) the release of such
information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) the
release of such information or records is reasonably
necessary to establish a defense to legal liability, or
(iv) the information has been made generally available to
the public;
(ix) on and after the occurrence of a Sales Date, promptly
incorporate in a Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary (and make all required filings of
such Prospectus supplement or post-effective amendment as
soon as reasonably practicable), of such information as the
Agent (and any underwriters, broker-dealers or agents
acting on behalf of the Agent) may reasonably request to
have included therein, including, without limitation, (i)
information relating to the "Plan of Distribution" of the A
Shares, (ii) information with respect to the number of A
Shares being sold to such underwriters or broker-dealers,
(iii) the purchase price being paid therefor and (iv) any
other terms of the offering of the A Shares to be sold in
such offering;
(x) otherwise comply with the Securities Act and the Exchange
Act and the rules and regulations of the SEC thereunder,
and make available to its securityholders, as soon as
reasonably practicable, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder;
(xi) use its best efforts to cause the A Shares covered by the
Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities
in the United States of America, any state thereof or the
District of Columbia as may be necessary to enable the
Agent (and any underwriters, broker-dealers or agents
acting on behalf thereof) to consummate the disposition of
such Shares in the United States;
(xii) cause to be maintained a transfer agent and registrar for
all A Shares from and after the date of this Agreement;
(xiii) use its best efforts to maintain the listing of the A
Shares on the New York Stock Exchange, Inc.;
(xiv) upon request of the Agent, in connection with any
underwritten public offering of A Shares by the Agent (on
its own behalf or on behalf of the Pledgor) after a Sales
Date has occurred, furnish to the Agent and to each
underwriter, broker-dealer or agent acting on behalf of the
Agent, a signed counterpart, addressed to the Agent (and to
each underwriter, broker-dealer or agent acting on behalf
of the Agent), of (i) certificates of officers of OEH and
the Pledgor, as the case may be, dated the date of closing
under any Selling Agreement (as defined below), (ii)
opinions of counsel to OEH dated the effective date of the
applicable Shelf Registration Statement and the date of
closing under any Selling Agreement, and (iii) comfort
letters from the independent accountants of OEH (and from
any other accountants whose report is contained or
incorporated by reference in the Shelf Registration
Statement) dated the effective date of the applicable Shelf
Registration Statement and the date of closing under any
Selling Agreement, in each case covering substantially the
same matters with respect to the Shelf Registration
Statement (and the Prospectus) and, in the case of the
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in officers' certificates of issuers or selling
securityholders in an underwritten public offering, as the
case may be, opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial
matters as any underwriters, broker-dealers or agents, as
the case may be, may reasonably request; and
(xv) cooperate with the Agent in connection with the
registration and qualification of the A Shares under the
securities or Blue Sky laws of such jurisdictions as the
Agent (and any underwriters, broker-dealers or agents
acting on behalf of the Agent) may reasonably request, and
do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the A
Shares covered by the Shelf Registration Statement;
provided, however, that neither the Pledgor nor OEH shall
be required to (i) register or qualify as a foreign
corporation or a dealer of securities where it is not now
so qualified or (ii) take any action that would subject it
to general service of process in any jurisdiction where it
is not now so subject or (iii) subject itself to taxation
in any such jurisdiction where it is not so subject.
(d) Underwriting Arrangements
If an underwriting or similar agreement is entered into by the
Agent (on its own behalf or on behalf of the Pledgor) on or after
the occurrence of a Sales Date, pursuant to which any A Shares
will be sold to an underwriter or underwriters for re-offering,
whether to the public pursuant to a Shelf Registration Statement
or otherwise, or a sales agreement is entered into so that the A
Shares will be sold to a broker-dealer as agent or principal,
whether for re-offering to the public pursuant to the Shelf
Registration Statement or otherwise (each, a "Selling Agreement"),
the Pledgor shall, and agrees to use its reasonable best efforts,
including through using its voting rights and board
representation, to procure that OEH shall:
(i) enter into a Selling Agreement with such underwriters,
broker-dealers or agents, as the case may be, such
agreement to be in form and substance reasonably
satisfactory to the Agent and such underwriters,
broker-dealers or agents, as the case may be, containing
such representations, warranties and other terms as are
customary in agreements of such type, including without
limitation indemnification and contribution provisions and
procedures which provide rights no less protective than
those set forth in Clause 1.3(e) (Indemnification) and
Clause 1.3(f) (Contribution) hereof with respect to all
parties to be indemnified by OEH and the Pledgor, including
the Agent (and any underwriters, broker-dealers or other
agents acting on behalf of the Agent);
(ii) if the Shares are to be sold otherwise than pursuant to a
Shelf Registration Statement, to cooperate with the Agent
and such underwriters, broker-dealers or agents, as the
case may be, and to prepare an offering memorandum or other
offering document for use in connection with such offering;
(iii) deliver such other documents and certificates as may be
reasonably requested by each underwriter or broker-dealer
to evidence compliance with any customary conditions
contained in the Selling Agreement or other agreement
entered into by the Pledgor and/or OEH pursuant to this
Clause 1.3(d);
(iv) cooperate with the Agent and each underwriter,
broker-dealer or agent participating in the disposition of
A Shares and their respective counsel in connection with
any filings required to be made with the National
Association of Securities Dealers, Inc.; and
(v) enter into such agreements and take such other actions as
the Agent and such underwriters, broker-dealers or agents,
as the case may be, may reasonably request in order to
expedite or facilitate the disposition of the A Shares,
including making appropriate officers of OEH reasonably
available to the underwriters for meetings with prospective
purchasers of the Shares and preparing and presenting to
potential investors customary "road show" material in a
manner consistent with offerings of other securities
similar to the A Shares.
(e) Indemnification
(i) The Pledgor agrees to indemnify and hold harmless the
Agent, each of the Lenders, each underwriter, broker-dealer
or agent acting on behalf of the Agent or any Lender, each
of their respective directors, officers, employees, limited
and general partners (either direct or indirect) (and such
partner's directors, officers, employees and agents) and
agents, and each person, if any, who controls any of the
foregoing persons within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such
person an "indemnified person"):
(A) from and against any and all losses, liabilities,
claims, damages and expenses whatsoever, joint or
several, as incurred, to which such indemnified
party may become subject under the Securities Act or
otherwise, insofar as such losses, liabilities,
claims, damages or expenses arise out of or are
based upon any untrue statement or alleged untrue
statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or arise out of or are based upon any
untrue statement or alleged untrue statement of a
material fact included in any preliminary
prospectus, the Prospectus, any amendment or
supplement thereto, or any other offering document
prepared or used in connection with the sale of any
Shares, or the omission or alleged omission
therefrom of a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading provided, however, that the Pledgor shall
not be liable in any such case to the extent, but
only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue
statement or omission or alleged omission made
therein in reliance upon and in conformity with
information relating to the Agent or any Lender
furnished to the Pledgor in writing by the Agent
expressly for use therein;
(B) against any and all losses, liabilities, claims,
damages and expenses whatsoever, joint or several,
as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission; provided that (subject to
paragraph (e)(iii) of this Clause 1.3) any such
settlement is effected with the written consent of
the Pledgor; and
(C) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel),
reasonably incurred in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under paragraphs (A) or (B)
above.
(ii) Each indemnified party shall give notice as promptly as
reasonably practicable to the Pledgor of any action
commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify the Pledgor
shall not relieve it from any liability hereunder to the
extent it is not actually and materially prejudiced as a
result thereof and in any event shall not relieve it from
any liability which it may have otherwise than on account
of this indemnity agreement. The Agent shall select counsel
to the indemnified parties. The Pledgor may participate at
its own expense in the defense of any such action;
provided, however, that counsel to the Pledgor shall not
(except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the
Pledgor be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from
its own counsel for all indemnified parties in connection
with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same
general allegations or circumstances. The Pledgor shall
not, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under this
Clause 1.3(e) (whether or not the indemnified parties are
actual or potential parties thereto), that (i) does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a
release from all liability arising out of or in respect of
such litigation, investigation, proceeding or claim or (ii)
would impose injunctive relief on any indemnified party or
a statement or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(iii) If at any time an indemnified party shall have requested
the Pledgor to reimburse the indemnified party for fees and
expenses of counsel, the Pledgor agrees that it shall be
liable for any settlement of the nature contemplated by
paragraph (e)(i)(B) of this Clause 1.3(e) effected without
its written consent if (i) such settlement is entered into
more than 45 days after receipt by the Pledgor of the
aforesaid request, (ii) the Pledgor shall have received
notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) the
Pledgor shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such
settlement.
(iv) The provisions of this Clause 1.4(e) and Clause 1.3(f)
shall be in addition to any other rights to indemnification
or contribution which an indemnified party may have
pursuant to law, equity, contract or otherwise. The
indemnity and contributions provisions set forth in this
Clause 1.4(e) and Clause 1.3(f) shall remain in full force
and effect regardless of any investigation made by or on
behalf of any indemnified party and shall survive the
transfer of the Shares by such indemnified party.
(v) The indemnification required by this Clause 1.3(e) shall be
made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly as and
when bills are received or loss, liability, damage or
expense is incurred.
(f) Contribution
If for any reason the foregoing indemnity and reimbursement is
unavailable or is insufficient to hold harmless an indemnified
party under Clause 1.3(e), then the Pledgor shall contribute to
the amount paid or payable by such indemnified party as a result
of any losses, liabilities, claims, damages and expenses (or
actions or proceedings, whether commenced or threatened, in
respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such losses, liabilities, claims,
damages, expenses, actions or proceedings, in such proportion as
is appropriate to reflect the relative fault of the Pledgor on the
one hand and the indemnified party on the other. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Pledgor or OEH, on the one
hand, or the indemnified party, on the other, and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. If,
however, the allocation provided in the second preceding sentence
is not permitted by applicable law, or if the allocation provided
in the second preceding sentence provides a lesser sum to the
indemnified party than the amount hereinafter calculated, then the
Pledgor shall contribute to the amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative fault but also the relative benefits to the
Pledgor and the indemnified party as well as any other relevant
equitable considerations. The parties agree that it would not be
just and equitable if contributions pursuant to this Clause 1.3(e)
were to be determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the preceding sentences of this
Clause 1.3(e). Notwithstanding anything in this Clause 1.3(e) to
the contrary, no Person (other than the Pledgor) shall be required
pursuant to this Clause 1.3(f) to contribute any amount in excess
of the interest and fees received by such person under this
Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(g) Expenses of Registration
All Registration Expenses shall be borne by the Pledgor.
"Registration Expenses" shall mean all costs, fees and expenses
incident to the offering and sale of (i) any or all of the A
Shares held by the Pledgor (including all of the A Shares issuable
upon conversion of all of the B Shares held by the Pledgor) and
(ii) any or all of the A Shares held by the Agent following a
Sales Date, in each case in accordance with the intended method or
methods of distribution thereof as specified by the Pledgor and
the Agent, including, without limitation, (a) all registration,
filing, securities exchange listing and National Association of
Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with
securities or blue sky laws, (c) all word processing, duplicating,
printing, messenger and delivery expenses, (d) the fees and
disbursements of counsel for the Pledgor and OEH and of the
independent public accountants of OEH, including, without
limitation, the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred by
the Lenders and the Agent (including, without limitation, the
reasonable fees and disbursements of any one counsel and any local
counsel selected by the Agent), (f) reasonable premiums and other
reasonable costs of policies of insurance against liabilities
arising out of the offering of the Shares, (g) any fees and
disbursements of underwriters, broker-dealers or agents
customarily paid by issuers or sellers of securities, including,
without limitation, reasonable fees and disbursements of counsel
for the underwriters in connection with blue sky qualifications of
the A Shares and determination of their eligibility for investment
under the laws of such jurisdictions, but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to
A Shares and (h) fees and expenses of any other person retained or
employed by the Pledgor or OEH.
(h) Reports under the Exchange Act
The Pledgor agrees to use its reasonable best efforts, including
through using its voting rights and board representation, to
procure that OEH will file the reports required to be filed by OEH
under the Exchange Act and the rules and regulations adopted by
the SEC thereunder (or, if OEH is not required to file such
reports, upon the request of the Agent, make publicly available
other information) and will take such further action as the Agent
may reasonably request, all to the extent required from time to
time to enable the Agent to sell any or all of the A Shares
without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time (or
any successor thereto) or (ii) any other rule or regulation
adopted by the SEC. Upon the reasonable request of the Agent, the
Pledgor agrees to use its reasonable best efforts, including
through using its voting rights and board representation, to
procure that OEH will deliver to the Agent a written statement as
to whether it has complied with such requirements and will, at its
expense, forthwith upon the request of the Agent, deliver to the
Agent a certificate, signed by OEH's principal financial officer,
stating (a) OEH's name, address and telephone number, (b) OEH's
Internal Revenue Service identification number, (c) OEH's SEC file
number, (d) the number of shares of each class of capital stock
outstanding as shown by the most recent report or statement
published by OEH, and (e) whether OEH has filed the reports
required to be filed under the Exchange Act for a period of at
least ninety (90) days prior to the date of such certificate and
in addition has filed the most recent annual report required to be
filed thereunder.
(i) Assignment of Registration Rights
The rights pursuant to this Clause 1.3 may be assigned (but only
with all related obligations) by the Agent to a transferee or
assignee of at least five percent (5%) of the then outstanding A
Shares, provided OEH is, within a reasonable time after such
transfer, furnished with written notice of the name and address of
such transferee or assignee and the A Shares with respect to which
such rights are being assigned.
(j) Lock-up Agreement
If an offering pursuant to Clause 1.3(a) through (h), inclusive
involves an underwritten offering of Shares on or after the
occurrence of a Sales Date, the Pledgor agrees to use its
reasonable best efforts, including through using its voting rights
and board representation, to procure that OEH will, and the
Pledgor agrees that it shall, enter into a lock-up agreement with
the underwriter or underwriters of such offering containing
provisions of the type customarily employed in such agreements
with respect to registered public offerings underwritten by
nationally-recognized underwriting firms.
(k) Specific Performance
The parties agree that, to the extent permitted by law, (i) the
obligations imposed on them in this Clause 1.3 (a) through (j)
inclusive are special, unique and of an extraordinary character,
and that in the event of a breach by any such party damages would
not be an adequate remedy; (ii) each of the other parties shall be
entitled to specific performance and injunctive and other
equitable relief in addition to any other remedy to which it may
be entitled at law or in equity; and (iii) any requirement for the
securing or posting of any bond in connection with the obtaining
of any such injunctive or other equitable relief is hereby waived.
1.4 Registration Rights
Notwithstanding any other assignment made pursuant to this
clause 1, the Agent may assign any registration rights
afforded to it pursuant to Clause 1.3 hereof provided that any
such assignment is made in accordance with the terms of Clause
1.3 (i).
EXHIBIT A
NOTICE OF TRANSFER
[DATE]
To:
Citibank International PLC
Citigroup Centre
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax number: x00 000 000 0000
Attention: Loans Agency
Citigroup Global Markets Inc.
Special Equity Transactions Group
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Candida
Fax number: x0 000 000 0000
Copied to:
Citicorp Trustee Company Limited
00xx Xxxxx
Xxxxxxxxx Xxxxxx,
Xxxxxx Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 000 000 0000
Attention: Agency and Trust
Security Agreement
We refer to the Security Agreement, dated December 22, 2003, between Sea
Containers Limited, as Pledgor, and Citicorp Trustee Company Limited, as the
Trustee (the "Security Agreement"). Capitalized terms used but not defined
herein will have the meanings assigned thereto in the Security Agreement.
This notice is being provided to you in accordance with Clause 5.2 of the
Security Agreement. The Custodian is instructed to deliver the following
securities from the Account:
[Description of Shares: ]
Transfer to :
[Name] [Address]
Transfer instructions to be received by the Custodian and the Trustee by close
of business (London time) one Business Day before the value date of the intended
transfer.
Yours sincerely,
....................................................
For and on behalf of the Pledgor
COUNTERSIGNATURE BY AGENT
We confirm that (a) no Event of Default has occurred and is continuing and (b)
the aggregate of the Market Value of the Collateral exceeds the Required
Security Coverage Amount.
....................................................
For and on behalf of the Agent
EXHIBIT B
NOTICE OF TRANSFER
[DATE]
To:
Citibank International PLC
Citigroup Centre
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax number: x00 000 000 0000
Attention: Loans Agency
Citigroup Global Markets Inc.
Special Equity Transactions Group
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Candida
Fax number: x0 000 000 0000
Copied to:
Citicorp Trustee Company Limited
00xx Xxxxx
Xxxxxxxxx Xxxxxx,
Xxxxxx Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 000 000 0000
Attention: Agency and Trust
Security Agreement
We refer to the Security Agreement, dated December 22, 2003, between Sea
Containers Limited, as Pledgor, and Citicorp Trustee Company Limited, as the
Trustee (the "Security Agreement"). Capitalized terms used but not defined
herein will have the meanings assigned thereto in the Security Agreement.
This notice is being provided to you in accordance with Clause 5.2 of the
Security Agreement. The Custodian is instructed to deliver the following
securities from the Account:
[Description of Shares: ]
Transfer to :
[Name] [Address]
This is a sale of Collateral pursuant to Clause 20.2 (a)(ii) of the Facility
Agreement and we instruct the Custodian to deposit an amount equal to the
purchase price of such securities into the Mandatory Prepayment Account in
accordance with Clause 7.8 (Mandatory Prepayment and Cancellation - Secured
Shares) of the Facility Agreement.
Transfer instructions to be received by the Custodian and the Trustee by close
of business (London time) one Business Day before the value date of the intended
transfer.
Yours sincerely,
....................................................
For and on behalf of the Pledgor
COUNTERSIGNATURE BY CUSTODIAN
We confirm that this is a sale by the Pledgor of Collateral pursuant to Clause
20.2 (a)(ii) of the Facility Agreement and we shall deposit an amount equal to
the purchase price of such securities into the Mandatory Prepayment Account in
accordance with Clause 7.8 (Mandatory Prepayment and Cancellation - Secured
Shares) of the Facility Agreement.
....................................................
For and on behalf of the Custodian
